Power to remove ASU trustees doesn't extend to UA, AU

Gov.Robert Bentley, right, meets with the ASU board of trustees in January, including Chairman Elton Dean, left, who resigned from the board July 23 at the governor’s request.
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Gov. Robert Bentley can remove Alabama State University trustees over alleged conflicts of interests, but that power doesn't extend to most majority white universities.

He can't do that with Alabama or Auburn trustees — or with trustees at most of Alabama's four-year colleges.

Because of the state constitution and markedly divergent laws governing the state's institutions of higher education, the chief executive's power over university boards of trustees varies wildly from school to school, ranging from an explicit power to remove trustees at ASU and three other schools to virtual irrelevance at the University of Alabama.

Three of the four universities where the governor can remove trustees are either historically black colleges and universities — ASU and Alabama A&M — or have a majority-minority student population (the University of West Alabama). Athens State University, which only covers junior and senior year, is the fourth. All four institutions had boards of trustees established after 1975.

The reasons for the disparities, which predate both Gov. Bentley and the controversies at ASU, are complex, incorporating the state's shameful racial history, the provisions of the 1901 state constitution and good faith attempts to give some of Alabama's institutions of higher learning a degree of independence from state bodies.

However, some black lawmakers consider it a double standard.

"This is an atrocious standard," said Sen. Hank Sanders, D-Selma. "With nearly all the majority white universities, there's no such law. But the two major African-American universities have this provision." (Tuskegee University is a state-related private institution.)

Difficult to change

But extending the governor's powers over every other public university would be difficult. In a statement, Bentley spokeswoman Jennifer Ardis noted Friday that the governor has broad power to request reports under oath from a number of state institutions.

"Governor Bentley does not seek additional authority, but (he) does take seriously his responsibility of carrying out the current laws regarding Alabama universities where he is president of the board of trustees," the statement said.

Most of the state's universities are governed by statute. Alabama and Auburn's existence, however, is written into the text of the Constitution, and altering the arrangements of those universities would require a constitutional amendment, needing approval from the Legislature and then the voters of the state.

In addition, the framers gave Alabama a self-perpetuating board: Unlike most schools in the state, the University of Alabama board members — not the governor — choose their members, which the Senate must confirm.

The University of Alabama board of trustees can remove trustees, but only for cause, and after a two-thirds vote of the board.

Auburn's by-laws, meanwhile, are explicit.

"Under the laws of the state of Alabama, the board of trustees has no power to remove one of its members," it states.

At both schools, trustees must disclose any conflicts of interests they face, but unlike ASU, there is no specific apparatus for removal of trustees found to have conflicts of interest.

Other schools, such as ASU, are governed by statute, but their by-laws are either silent about removal or, like Auburn, explicitly deny the board power to remove its members. Auburn, the University of Montevallo and the University of South Alabama cite Section 60 of the Alabama Constitution — which requires the removal of public officials convicted of "infamous crimes" — as potential grounds for removal.

Conviction does not appear necessary in the laws governing the trustees of ASU and Alabama A&M.

No right to public hearing

In those cases, the conflicts of interest provisions require that a "violation" of the law take place. How a violation is determined is currently a point of contention between Bentley and Marvin Wiggins, a circuit court judge who Bentley removed from the board of trustees last week.

The governor, using a preliminary report prepared by Birmingham-based Forensic Strategic Services, cited evidence that Wiggins' relatives had worked for and financially benefited from the university as grounds for removal.

Wiggins has threatened legal action, saying the governor violated his due process rights by failing to a hold a hearing over the issue.

"No governor has exercised that power other than Bentley," said Birmingham attorney Donald Watkins, currently working in a pro bono capacity for Alabama State University. "My criticism is not that he has the power to remove. My criticism is in America, no one should be removed from their job without the opportunity to be heard. That's fundamental due process."

In response to Wiggins, David Byrne, Bentley's chief legal adviser, wrote that the statute "by its plain language, does not give you the right to a public hearing."

Among the remaining public universities, only Troy's by-laws provide for the removal of a trustee, and then only for habitual non-attendance. Three-fourths of the trustees must approve the removal before it can take effect.

The power to remove

Until 1975, Alabama State University and Alabama A&M were under the direction of the State Board of Education, with relatively little independence. In 1961, Gov. John Patterson pressured school officials to expel several Alabama State University students for participating in sit-ins.

Getting the universities their own independent boards of trustees became a priority for black lawmakers, through statute.

"Nobody at that time felt that the state of Alabama was going to establish any more four-year schools through constitutional amendment," said Rep. Alvin Holmes, D-Montgomery, first elected to the House in 1974.

How the removal provision got in is unclear. Both Holmes and former Lt. Gov. Jere Beasley, who presided over the Alabama Senate at the time, said last week they could not remember any significant debate over the legislation. Watkins, whose father helped draft the law, said supporters were less concerned about the governor's power to remove trustees than ensuring an ASU board would have the same power.

"They did not know if the governor would appoint all whites to the board, or if he would appoint people who would be antagonistic to black interests," Watkins said. "If the governor had it (the power to remove trustees), they wanted to have it, too."

Universities that have established boards of trustees since 1975 — including the University of West Alabama (2006) and Athens State (2012) — have had the removal provision included in their statutes as well.

Watkins and Sanders said the power, if it exists, should be applied to all universities.

"This must be protested in various ways, because it's just a terrible situation where a governor can say 'You've got a conflict of interest, you're gone,' " Sanders said. "Particularly when a board is closely divided and control is given to that governor. It's a tragedy."

Power to remove?

A look at universities and whether the governor can remove trustees:

• Alabama State University, Alabama A&M: "It shall be unlawful for any member of the board to derive financial benefit in any form from a contract or transaction affecting the interest of the university; to procure, or to be a party in any way, to procuring the appointment of any relative to any position of financial trust or profit; or to influence the appointment or reappointment, retention, dismissal or compensation of any employee of the university except through the prescribed procedures for such purposes. The violation of this provision shall subject the member so offending to removal by the governor or the board."

• Athens State University, University of West Alabama: "No member of the board, individually, as a partner, as a stockholder, a board member, or an officer of a corporate body, shall conduct any business transaction, directly or indirectly, with the university (or, in UWA's case, 'the University of West Alabama.') Any person who violates this subsection shall be immediately removed from the board, and replaced for the unexpired portion of his or her term by appointment of the governor."

• University of Alabama: Board of trustees is self-perpetuating; nominees confirmed by Senate. Board may remove members for cause and by a two-thirds vote. No power of removal by governor.

• Auburn University; University of Montevallo; University of South Alabama: "Under the laws of the state of Alabama, the board of trustees has no power to remove one of its members. Section 60 of the Constitution of Alabama, which provides that '(no) person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state' sets forth the constitutional grounds and procedure for removing a trustee."

• Troy University: No removal powers in statute. However, the Board of Trustees by a vote of three-quarters of the members may request resignation of members for habitual nonattendance.

• Jacksonville State University; University of North Alabama: No removal powers listed in statute or bylaws.